UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROBERTO MENDEZ-SANCHEZ, aka Carlos Lopez; aka Alberto; aka Pecas; aka Beto, Defendant-Appellant.
No. 08-30044
United States Court of Appeals, Ninth Circuit
April 23, 2009
4721
D.C. No. CR-06-00425-MJP-003. Appeal from the United States District Court for the Western District of Washington. Marsha J. Pechman, District Judge, Presiding. Argued and Submitted March 11, 2009—Seattle, Washington. Filed April 23, 2009. Before: William A. Fletcher, Ronald M. Gould, and Richard C. Tallman, Circuit Judges. Opinion by Judge Gould.
Nancy L. Talner, Seattle, Washington, for appellant Roberto Mendez-Sanchez.
OPINION
GOULD, Circuit Judge:
We consider the relationship between a motion to substitute counsel and an invocation of a defendant’s Faretta rights. We hold that while a defendant may invoke his or her self-representation rights after a denial of a motion to substitute counsel, the invocation must be unequivocal. A request to represent oneself made while at the same time stating a preference for representation by a different lawyer and rearguing the change of counsel motion is insufficient to invoke Faretta.
I
A federal grand jury returned an indictment against Defendant Roberto Mendez-Sanchez (“Mendez-Sanchez”) accusing him and several other defendants of participating in a conspiracy to distribute, possessing with the intent to distribute, and distributing both methamphetamine and cocaine.1 Several of the charged crimes carry a mandatory minimum of ten years of imprisonment. The district court appointed William Hines (“Hines”) to represent Mendez-Sanchez and set trial for June 4, 2007.
Before trial Hines filed a motion to withdraw as counsel at Mendez-Sanchez’s request. At the ex parte hearing on the motion, Hines stated that Mendez-Sanchez had accused Hines of “threatening him” whenever Hines discussed the evidence that would be presented at trial, and that Mendez-Sanchez did
Judge Pechman then questioned Mendez-Sanchez, who stated that his lawyer was always threatening him with ten years imprisonment. Judge Pechman told Mendez-Sanchez that Hines could not dictate the terms of the plea agreement, he could only communicate the government’s offers. Mendez-Sanchez responded: “but the other thing is — that we’ve never really talked about very clearly is how am I going to go to trial? There isn’t any evidence against me. There have to be recordings; there have to be pictures. How can it be based on just someone’s words?” Judge Pechman explained: “There is no requirement that one have pictures or recordings” to be convicted of these crimes. Mendez-Sanchez finally stated that he would like another lawyer because he was looking for less than ten years, but if he could not receive a better offer, maybe he would “sign off on it.” The court granted his request for new counsel, and set a new trial date in November. After the hearing, Judge Pechman appointed Michael Kolker (“Kolker”) to represent Mendez-Sanchez.
On August 16, 2007, the district court granted Kolker’s request for a second attorney, appointed Michael Schwartz (“Schwartz”) to represent Mendez-Sanchez with Kolker, and moved the trial date to January 7, 2008.
After this discussion, the district court cleared the courtroom and asked Mendez-Sanchez’s attorneys, Schwartz and Kolker, about the attorney-client relationship. Kolker said that he had visited Mendez-Sanchez many times, but whenever he tried to go over evidence, Mendez-Sanchez would leave the room. Mendez-Sanchez, according to Kolker, was convinced that the date on the search warrant demonstrated that it was a forgery and insisted Kolker call the magistrate as a witness to testify to the forgery. Kolker said that he had requested a second lawyer on the case because of his difficulties communicating with Mendez-Sanchez. He further stated that Mendez-Sanchez continued to insist that the videotaped depositions would not be admissible at trial, despite Kolker’s advice to the contrary. Kolker’s statements prompted Judge Pechman to ask whether Kolker was concerned about Mendez-Sanchez’s competency. Kolker responded: “No. He understands who I am and he understands what my job is. I think he just doesn’t want to hear what I’m telling him. And he just doesn’t want to talk about it, basically.”
The district court next asked Kolker’s co-counsel, Schwartz, about his impressions of Mendez-Sanchez and their
The district court next questioned Mendez-Sanchez, who began by telling the court that he did not trust his attorneys, that they were “in cahoots” with the prosecutor, and that he did not want them in the hearing. When Judge Pechman asked why Mendez-Sanchez believed his attorneys were colluding with the prosecutor, Mendez-Sanchez explained that he knew that the police did not have a warrant and his attorneys claimed that they did. Mendez-Sanchez stated that when he asked the police if they had a warrant at the time they arrested him, they responded for him to “shut up.” From this response he concluded that there was no warrant. He also detailed that the warrant his lawyers showed him had a different date originally and that the date had been changed. Judge Pechman asked Mendez-Sanchez if he knew what the government’s final offer had been, and he responded “ten years.”
Mendez-Sanchez then commenced his ambiguous Faretta demand: “Well, I don’t want any lawyer anymore. What — I told them I want the paper to sign and that tell me how long
The district court asked Mendez-Sanchez’s counsel to explain what issue Mendez-Sanchez had with the warrant. According to Kolker, it was a warrant that Magistrate Judge James Donohue had signed on November 29, 2006. Judge Donohue had begun to write “November” in the space for the date by which the warrant would have to be served, he then crossed that out, initialed it, and wrote the warrant must be executed by December 9, 2006. Kolker stated that Mendez-Sanchez thought this warrant was improper and that there was another secret warrant that Kolker was not showing him. Judge Pechman reviewed the warrant in question and explained to Mendez-Sanchez that, from the face of the warrant, and because she knew Magistrate Judge Donohue’s signature, she could tell that the warrant was not a forgery. She stated that it seemed as if the magistrate judge had just accidentally begun to write November but he had initialed his mistake and therefore the warrant was, on its face, valid. The court next informed Mendez-Sanchez that his lawyers were obligated to explain what was likely to happen at trial and to help him make decisions based on that information.
Mendez-Sanchez responded “But I don’t want these lawyers. I’m not going to risk my life with these lawyers.” The court asked if he was asking to represent himself, and he replied that self-representation would be better and that he did
Once the prosecutor was present, the court denied Mendez-Sanchez’s motion to substitute counsel. The court explained that it had appointed for Mendez-Sanchez both Kolker and Schwartz after his initial problems with Hines, even though “it was [her] clear belief at the time that Mr. Mendez-Sanchez did not like the message that was being delivered by the government and was in fact assuming some other counsel would change that message.” The court also stated that there were several defendants who could not be sentenced until after Mendez-Sanchez’s trial was completed; that a witness was flying in from Asia; that the relationship problems between Mendez-Sanchez and his counsel were not personal problems but stemmed from Mendez-Sanchez’s refusal to face his current situation; and that his counsel felt prepared for trial.
The district court next conducted a full Faretta colloquy. During the colloquy, Mendez-Sanchez responded in a coherent manner, demonstrated familiarity with the charges against him, and acknowledged that Judge Pechman did not think it was a good idea for him to represent himself. In response to Judge Pechman’s ultimate question, “Is it still your desire to represent yourself?” Mendez-Sanchez equivocated: “Well, not with this lawyer, no. If you assign me a different lawyer, yes, I will go with the lawyer.” Mendez-Sanchez then said “I understand that [a] lawyer knows more than I do. But this lawyer that are present here, they have done nothing for me ever, and from the beginning I knew that.” Judge Pechman tried to clarify, asking “[s]o let me understand. You would prefer to have a lawyer, you do not want to represent yourself?” Mendez-Sanchez replied “I think [it] would be better if a lawyer will help me. But I hope that it would be a good lawyer, not like these guys.”
Based on these responses, the district court found that Mendez-Sanchez had not unequivocally invoked his Faretta
The jury found Mendez-Sanchez guilty on all counts. The court sentenced him to 240 months, the mandatory minimum. He filed a timely notice of appeal.
On appeal, Mendez-Sanchez argues that Judge Pechman abused her discretion when she denied Mendez-Sanchez’s motion to substitute counsel, that Judge Pechman should have offered Mendez-Sanchez a stand-by attorney during the Faretta colloquy, and that Judge Pechman plainly erred by not ordering, sua sponte, Mendez-Sanchez to undergo a competency evaluation.
II
We review the denial of a motion for substitution of counsel for abuse of discretion. United States v. Prime, 431 F.3d 1147, 1154 (9th Cir. 2005). Under our established rule, we consider: (1) the timeliness of the motion; (2) the adequacy of the district court’s inquiry; and (3) whether the asserted conflict was so great as to result in a complete breakdown in communication and a consequent inability to present a defense. Id.
[1] Applying this rule, the first salient fact is that Mendez-Sanchez’s motion to substitute Kolker and Schwartz was not timely. Mendez-Sanchez made the motion little more than two weeks before trial—a trial that had been continued twice and involved significant discovery. A new counsel, if permitted, would have required additional time to prepare for trial. While timeliness is not dispositive, and sometimes a defendant would be unable to make a motion until shortly before trial—such as in a case where a defendant realized his or her counsel was not prepared—that was not the case here. See id. Mendez-Sanchez filed this motion on the same day as his plea deadline. This timing supports the district court’s finding that
[2] The second prong in our analysis is our conclusion that the district court’s inquiry was adequate. The inquiry must be “adequate to create a sufficient basis for reaching an informed decision.” United States v. Musa, 220 F.3d 1096, 1102 (9th Cir. 2000) (quotation omitted). Judge Pechman extensively questioned Mendez-Sanchez and his attorneys. The court was able to surmise from Mendez-Sanchez’s statements that Mendez-Sanchez refused to accept the consequences of his crimes. Moreover, while some of the court’s questions were open-ended, many questions were targeted toward understanding the crux of the disagreement between Mendez-Sanchez and his attorneys. See United States v. Franklin, 321 F.3d 1231, 1238 (9th Cir. 2003) (holding that open-ended questions were not inadequate where the questions allowed defendant and counsel to sufficiently detail the reasons for the request to substitute counsel). The court was therefore able to make an informed decision regarding the motion and the inquiry cannot be faulted. See United States v. Mitchell, 502 F.3d 931, 983 (9th Cir. 2007).
[3] Mendez-Sanchez centers his argument on the third factor to be assessed under our rule— i.e., the extent of the conflict between Mendez-Sanchez and his attorneys. To meet this prong, a defendant must show that there was an “extensive, irreconcilable conflict” between himself and his appointed counsel. United States v. Smith, 282 F.3d 758, 763 (9th Cir. 2002). This conflict must have led to “a significant breakdown in communication that substantially interfered with the attorney-client relationship.” United States v. Adelzo-Gonzalez, 268 F.3d 772, 779 (9th Cir. 2001).
Doubtless here there was some level of conflict. Kolker stated that Mendez-Sanchez would leave the room or change the subject when his lawyers were speaking about something
Mendez-Sanchez relies on Adelzo-Gonzalez. In Aldelzo-Gonzalez, 268 F.3d at 774, the defendant moved to substitute counsel because of a conflict between himself and his attorney. For example, Adelzo-Gonzalez’s counsel had used bad language, had threatened to “sink [Adelzo-Gonzalez] for 105 years” if he refused to accept a plea, had tried to prevent him from filing motions, and even accused him of being a liar. Id. at 774-75. Adelzo-Gonzalez also said that he would prefer to represent himself rather than continue with current counsel. Id. at 778. We reversed the district court’s denial of Adelzo-Gonzalez’s motion to substitute counsel because we determined that the breakdown in the attorney-client relationship was severe. Id. at 779.
[4] While there are some facial similarities between Adelzo-Gonzalez and this case, there are important distinctions. Mendez-Sanchez had already requested and received new counsel. He and his former counsel had experienced the same conflict over the plea negotiations and the validity of the warrant. When Mendez-Sanchez stated that he did not trust his attorneys, the court properly inquired into why and told him, though he still did not believe it, that the attorneys were correct: the warrant was not a forgery, his attorneys could only relay to him the deals that the government offered, and there is no requirement that video evidence be introduced in a trial. Kolker and Schwartz demonstrated no animosity toward Mendez-Sanchez, unlike the attorney had in Adelzo-Gonzalez. When Mendez-Sanchez and his attorneys discussed issues that did not involve the evidence against him, such as waiving a jury on the immigration count, Mendez-Sanchez was able to have a productive conversation with them. The relationship between Mendez-Sanchez and his attorneys does not exhibit
[5] In United States v. Smith, we affirmed a district court’s denial of a motion to substitute counsel and held that the conflict between Smith and his attorney arose out of “general unreasonableness or manufactured discontent.” 282 F.3d 758, 764 (9th Cir. 2002). Smith quarreled with his attorney about the wording of a discovery motion, and when Smith’s attorney would not use his wording, Smith unilaterally cut off contact, stating that he did not want to “meet and discuss something and have nothing be done about it again.” Id. at 763. Smith, like Mendez-Sanchez, had already received one substitute counsel. Id. at 762. While having already been granted a motion to substitute counsel once does not preclude Mendez-Sanchez receiving another lawyer, the fact that this was the same breakdown in communications that had occurred with his previous lawyer is significant. The nature of the conflict demonstrates that it may have been based on Mendez-Sanchez’s general unreasonableness. It is unclear what could have been done differently: Mendez-Sanchez had three lawyers tell him what he did not want to hear, he had not listened to any of them, and the judge herself had told him the same thing. If Mendez-Sanchez had received other counsel, it is likely that the same conflicts would have arisen.
Finally, whatever conflict Mendez-Sanchez had with his counsel was not extensive or irreconcilable. See id. at 763. Mendez-Sanchez was able to communicate with his attorneys, they bore him no ill-will, and he stated that they were never rude to him. There must be limits on the ability of a defendant to gain new counsel when the defendant is acting unreasonably and especially where appointing new counsel would require a continuance with a consequent disruption to the court process. Here, we conclude that the district court did not abuse its discretion in denying the motion for new counsel.
Mendez-Sanchez also challenges aspects of the district court’s Faretta colloquy, and specifically contends that he should have been told that he could have standby counsel.
[6] In determining whether a defendant has made a knowing and intelligent waiver of counsel, the record must show that the defendant has been made aware of the nature of the charges against him, the possible penalties, and the risks of self-representation. United States v. Hernandez, 203 F.3d 614, 624 (9th Cir. 2000), abrogated in part by Indiana v. Edwards, 128 S.Ct. 2379 (2008), as recognized in United States v. Ferguson, No. 07-50096, 2009 WL 792485 (9th Cir. Mar. 27, 2009). Whether a defendant knowingly and voluntarily waives his Sixth Amendment right to counsel is a mixed question of law and fact reviewed de novo. United States v. Marks, 530 F.3d 799, 816 (9th Cir. 2008). A district court’s finding that a defendant’s waiver is equivocal is a finding of fact reviewed for clear error. Id.
[7] Faretta v. California, 422 U.S. 908 (1975) presented the Supreme Court with a question of dueling rights of major consequence in our criminal justice system. In a series of hard-fought decisions, the Supreme Court had recognized that “the help of a lawyer is essential to assure the defendant a fair trial.” Faretta, 422 U.S. at 832-33 (citing Arserginger v. Hamlin, 407 U.S. 25 (1972); Gideon v. Wainwright, 372 U.S. 335 (1963); Johnson v. Zerbst, 304 U.S. 458 (1938); Powell v. Alabama, 287 U.S. 45 (1932)). Any right to proceed without an attorney stood in juxtaposition. The Court acknowledged the “strong argument . . . that the whole thrust of [the right to counsel] decisions must inevitably lead to the conclusion that a State may constitutionally impose a lawyer upon even an unwilling defendant.” Faretta, 422 U.S. at 834. Yet, the Court concluded that based upon the text, structure, and history of the Sixth Amendment, an independent and individual right to self-representation existed. Id. at 818-32. Conse-
Because the rationale of Faretta permitted self-representation, even if it was likely to have been harmful, when there was a knowing and intelligent waiver, we recognize this constitutional right only where demanded after advice on the hazards of self-representation. See id. at 835 (requiring a knowing and intelligent waiver of the right to counsel before allowing self-representation). The Supreme Court held that a defendant must be told of the dangers of self-representation to permit an intelligent waiver of the right to counsel. Id. Otherwise, in the absence of candid advice from the trial court on the dangers and practical risks of a self-representation, we would have no confidence that a knowing and intelligent waiver had been made.
[8] While “the Constitution does not force a lawyer upon a defendant,” Faretta, 422 U.S. at 814-15 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)), it requires that a defendant who wishes to waive his or her right to counsel do so unequivocally. See Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir. 1989). This principle of our circuit law has often been followed. See, e.g., Sandoval v. Calderon, 241 F.3d 765, 774 (9th Cir. 2000); Hernandez, 203 F.3d at 621.
The requirement that a self-representation demand be unequivocal follows from the nature of the dueling rights at stake in Faretta and the need to make a sensible accommoda-
After being advised of the hazards of self-representation in the Faretta colloquy, the criminal defendant must make a choice with eyes open. We will recognize a choice for the self-representation right when made knowingly and intelligently and when expressed without equivocation.
[9] A conditional waiver can be stated unequivocally, as for example when a defendant says in substance: “If I do not get new counsel, I want to represent myself.” There is a condition, but the demand is unequivocal. In Adams, we held that a defendant who invoked his Faretta rights after the court denied his motion to substitute counsel, later asked for counsel after proceeding pro se, was then re-appointed his previous attorney, and then re-asserted his right to self-representation
[10] Within this framework we examine Mendez-Sanchez’s Faretta invocation and colloquy. During the hearing on the motion to substitute counsel, Mendez-Sanchez stated that he wished to go to trial, “but not with [these] lawyers,” and then several minutes later he stated “I don’t want these lawyers, I’m not going to risk my life with [these] lawyers.” This time Judge Pechman asked if Mendez-Sanchez wished to represent himself, and Mendez-Sanchez stated that “that would be better.” However, several minutes into the subsequent colloquy,
IV
[11] Mendez-Sanchez also argues that Judge Pechman should have offered to appoint him standby counsel during the Faretta colloquy. We can see why Mendez-Sanchez might prefer a standby counsel if he represented himself, but under our established precedent there is no right to the assistance of standby counsel. Locks, 703 F.2d at 407-08; see also McKaskle v. Wiggins, 465 U.S. 168, 183 (1984) (“Faretta does not require a trial judge to permit ‘hybrid’ representation . . . .”). Moreover, we have held that a defendant who wishes to represent himself or herself and also asks that he or she be afforded standby counsel has not unequivocally asserted his or her right to self-representation and waived his or her right to counsel. See Kienenberger, 13 F.3d at 1356. The purpose of the Faretta colloquy is to inform the defendant of his or her rights and determine whether, the defendant still wishes to represent himself or herself with eyes open. Faretta, 422 U.S. at 835. To require that a court conducting a Faretta colloquy inform a criminal defendant that he or she may or may not receive a standby counsel would do nothing to focus the inquiry for the defendants knowing and intelligent decision. Because there is no right to have a standby counsel appointed during self-representation, it follows that there is no right to have the court advise about the possibilities of standby counsel during the Faretta colloquy.
We hold that the district court’s Faretta inquiry was sufficient and that the district court did not clearly err in finding
V
We next address Mendez-Sanchez’s argument that the district court erred by not ordering sua sponte a competency evaluation. Because the issue of Mendez-Sanchez’s competency is raised for the first time on appeal, we review the district court’s decision for plain error. Marks, 530 F.3d at 814. “Plain error is (1) error, (2) that is plain, and (3) affects substantial rights.” United States v. Waknine, 543 F.3d 546, 550 (9th Cir. 2008) (internal quotation marks omitted). “If these three conditions are met, we may then exercise our discretion to grant relief if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotation marks omitted).
[12] “ ‘Due process requires a trial court to hold a competency hearing sua sponte whenever the evidence before it raises a reasonable doubt whether a defendant is mentally competent.’ ” United States v. Mitchell, 502 F.3d 931, 986 (9th Cir. 2007) (quoting Miles v. Stainer, 108 F.3d 1109, 1112 (9th Cir. 1997)). In determining competence to stand trial, we ask whether the defendant has sufficient ability to consult with his lawyer with a reasonable degree of rational understanding and both a rational and a factual understanding of the proceedings against him. See Marks, 530 F.3d at 550. A court considers the defendant’s irrational behavior, his demeanor in court, and any prior medical opinions. Drope v. Missouri, 420 U.S. 162, 180 (1975). An appellate court reviewing the failure to order a competency evaluation looks “to see if the evidence of incompetence was such that a reasonable judge would be expected to experience a genuine doubt respecting the defendant’s competence.” Mitchell, 502 F.3d at 986 (quotation omitted). There must be “substantial evidence of incompetence” to hold the district court plainly erred by not initiating a competency evaluation. Id.
[14] Finally, Mendez-Sanchez argues that while he may have been competent to go to trial, he was not competent to reject a plea offer. Under our precedent, there is no difference between the level of competence needed to plead guilty and that to stand trial. See Godinez v. Moran, 509 U.S. 389, 399 (1993) (“If the Dusky standard is adequate for defendants who plead not guilty, it is necessarily adequate for those who plead guilty.”). Mendez-Sanchez relies upon Indiana v. Edwards, 128 S. Ct. 2379, 2384 (2008), in which the Supreme Court established higher levels of competency necessary for self-representation than are necessary to stand trial. However, Edwards does not address competency to reject a plea offer and it does not overrule or undermine the Supreme Court’s prior precedent of Godinez, which forecloses Mendez-Sanchez’s argument that he was not competent to reject the plea offer.
For the foregoing reasons, we hold the district court did not abuse its discretion by denying Mendez-Sanchez’s motion to substitute counsel. We further hold that his waiver of counsel under Farettasua sponte a competency evaluation with regard to Mendez-Sanchez’s competency to stand trial or to refuse to enter a plea agreement.
AFFIRMED.